Lim & Zong (No 2)
[2019] FCCA 3249
•12 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LIM & ZONG (No 2) | [2019] FCCA 3249 |
| Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Stay application – where applicant applied for a stay of interim orders – where applicant did not establish a proper basis for a stay – consideration of best interests of child – application for an order granting stay dismissed. |
| Legislation: Family Law Act 1975 (Cth), s.102NA |
| Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| Applicant: | MR LIM |
| Respondent: | MS ZONG |
| File Number: | BRC 8160 of 2014 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 7 November 2019 |
| Date of Last Submission: | 7 November 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 12 November 2019 |
REPRESENTATION
| The Applicant appeared in person |
| The Respondent appeared in person |
| Solicitors for the Independent Children's Lawyer: | Julie Harrington Solicitor |
ORDERS
The application filed by the applicant on 28 October 2019 seeking a stay of orders made on 20 September 2019 (as amended) is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Lim & Zong (No 2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Brisbane |
BRC 8160 of 2014
| MR LIM |
Applicant
And
| MS ZONG |
Respondent
REASONS FOR JUDGMENT
Introduction
On 24 September 2019 the applicant filed a Notice of Appeal to set aside interlocutory parenting orders made by me on 20 September 2019[1] suspending both time and communication with the child until further order and requiring the applicant to attend upon a psychologist. Further orders were made seeking assistance from the Independent Children’s Lawyer regarding an allegation that child exploitation material had been downloaded and traced to the applicant’s residential address by police.
[1] Amended on 30 October 2019 under Rule 16.05(2)(e) of the Federal Circuit Court Rules 2001.
This matter was initially listed for final hearing on 2 September 2019. Following the release of the Family Report the Independent Children’s Lawyer sought that the matter be listed on an urgent basis. The respondent mother in her affidavits raised issues that the applicant father had engaged in coercive and controlling behaviour towards her in the presence of the child over a significant period of time. The Family Consultant in her report dated 26 August 2019 recommended that the father spend no time and not communicate with the child. The Independent Children’s Lawyer was concerned that both parties were unrepresented. She sought an order for the applicant’s time to be supervised raising concerns about the risk he presented to the child.
The matter was listed before me for mention on 30 August 2019. Given the allegations of family violence and the fact that section 102NA of the Family Law Act 1975 was due to commence on 10 September 2019 the final hearing of the matter was adjourned to allow both parties to make application through the Commonwealth Family Violence and Cross Examination of Parties Scheme. The final hearing of the matter was vacated and an order made for the matter to proceed to interim hearing on 2 September 2019.
Interim hearing
On 2 September 2019 during the interim hearing the parties had the assistance of a Mandarin interpreter. At the conclusion of the evidence and submissions I reserved my decision. On 20 September 2019 I delivered written reasons[2]. At paragraphs [28] to [69] I considered the evidence of family violence deposed to in the affidavits of both parties and contained within the Tender Bundle (Exhibit ICL 1). I accepted the respondent’s allegations particularly where corroborated by a contemporaneous police record. I accepted that the respondent mother was fearful of the applicant and that there was a proper evidentiary basis for that fear.
[2] Zong & Lim [2019] FCCA 2662
With respect to the evidence tendered by the Independent Children’s Lawyer (Exhibit ICL 1) it appeared that the applicant’s harassment of the respondent continued notwithstanding the existence of Protection Orders in force. In addition concerns were raised regarding the applicant’s conduct by a supervisor at the contact centre where the applicant was spending time with the child. In addition on one occasion Court staff had been required to intervene on behalf of the respondent. On another occasion staff members at the Airport were required to intervene on behalf of the respondent during a changeover. On another occasion the respondent required the assistance of J Street police due to harassment by the applicant (as alleged). I refer to my reasons in that regard.
I found that the applicant had perpetrated significant and sustained family violence against the respondent and that this had continued over a period of 6 years. Of major concern was the fact that the applicant was undeterred by the existence of Protection Orders. I accepted the analysis of the Family Consultant that the child is a compliant child and is suffering emotional and psychological harm being exposed to the high conflict and her mother’s exposure to family violence. I was satisfied that the applicant was likely to continue to engage in coercive controlling behaviour and harassment of the respondent in the presence of the child at handover. I considered the practical difficulties in this matter as the applicant lives in Perth and the respondent in Brisbane. I was concerned regarding the unsatisfactory explanation provided by the applicant when the Perth police seized child exploitation material from his residential address. I was concerned that the applicant was pre-occupied with the respondent and focused on the resumption of their relationship. I determined that the risks to the child outweighed the benefit of the child maintaining a meaningful relationship with the applicant in the short term and determined to take a cautious approach suspending time and communication orders until these issues could be properly investigated.
Legal principles governing a stay application
Pursuant to Rule 22.11 of the Family Law Rules 2004 the filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from unless otherwise provided by a legislative provision.
The principles governing a stay are well established. The onus to establish a proper basis for the stay is on the applicant. In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 the Full Court set out the applicable principles at [18] emphasizing that an order granting a stay is discretionary and is to be determined on its merits. The relevant principles are as follows:
·the onus to establish a proper basis for the stay is on the applicant. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·the mere filing of an appeal is insufficient to grant a stay;
·the bona fides of the applicant;
·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
·the desirability of limiting the frequency of any change in a child’s living arrangements;
·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
·the best interests of the child the subject of the proceedings are a significant consideration.
See also the decision of McDonald & Rogers [2007] FMCAfam 260 where FM Halligan (as he then was) discussed the applicable principles when dealing with an application to stay parenting orders at [22] to [25] in particular where the Full Court in EJK & TSL (No.2) (2006) FamCA 806 at [17] emphasized that the child’s best interests are a significant if not paramount consideration.
Grounds of Appeal
The applicant argued the following appeal grounds:
1. Judicial officer made an error as to the important facts when considering the evidence available at the original hearing
2. Judicial officer thought the father complained it was the mother who refused to hand over the child to him on the weekend of 15 to 16 September 2018 as he did not give the mother one month’s notice.
3. In my affidavit “29. I did give the other party one month notice at handover.”
4. In my affidavit “30. On 14 August 2018 I sent an email to the other party “On 15 to 16 September I will come to look after X” Annex E.1 is a copy of the email.”
5. My Annex E.1 is a copy of certified translation of the above email.
6. It is the mother who breached parenting order by refused the child spending time with me.
Evidence in support of stay application
The applicant relied on two affidavits filed on 28 October 2019 and the second on 1 November 2019 on the stay application.
In his affidavit filed on 28 October 2019 the applicant sought to challenge the evidence relied on at the interim hearing and argued that he was denied procedural fairness in “not having sufficient time to read the family report” and not having time to consider the Tender Bundle (Exhibit ICL 1) and in not cross examining the Family Consultant.
The Family Report was released on Friday 30 August 2019 in the morning. The interim hearing occurred on Monday 2 September 2019. The Independent Children’s Lawyer sent the Tender Bundle to the applicant via email on 28 August 2019 in preparation for the trial. As an unrepresented litigant the applicant may have had difficulty reading this material however with respect to the Tender Bundle he relied on a document in Exhibit ICL1 in support of his case. He adequately addressed all issues during the interim proceedings. With respect to his application to cross examine the Family Consultant this was made via correspondence to my Associate on 6 September 2019 after the interim hearing had concluded.
The applicant complained that the respondent should not have been permitted to rely on earlier affidavits including her affidavits filed on 18 September 2017 and 26 August 2019. Both parties were provided with an opportunity to address the Court regarding the affidavits each of them relied on. The applicant alleged that the Court failed to take into account an affidavit filed by him on 17 September 2018 in support of a contravention application which was subsequently withdrawn upon the applicant filing a Notice of Discontinuance. No application was made to rely on that affidavit at the interim hearing.
The balance of the October 2019 affidavit relied on by the applicant seeks to adduce further evidence wherein the applicant annexes documents that were not before the court to contradict the evidence led during the interim hearing. The evidence relied on by the applicant post - dating the interim hearing does not materially affect my determination that the applicant engaged in family violence and that notwithstanding the existence of Protection Orders taken out to protect the respondent he continued to harass her. I was satisfied that this conduct was likely to continue in the future regardless of whether a Protection Order was in place.
The applicant challenged some findings of fact. In my view even if upheld those facts were not material to my decision. The applicant generally denied the allegations of family violence as asserted by the respondent notwithstanding that there was some documentary support for a number of the alleged incidents.
In his affidavit filed on 1 November 2019 the applicant made submissions arguing why a stay should be granted. He argued that the child should spend time with him to enable her to spend time with her “75 year old grandmother,” that the child would be missing her father and that not spending time nor communicating with her father was harming the child and not in her best interests.
The applicant did not challenge the involvement of the Independent Children’s Lawyer during the interim proceedings. However he deposed in his affidavit that on 31 October 2019 that he had lodged a complaint to the Legal Services Commission regarding her “misconduct.” In my view that is not a relevant consideration with respect to the application for a stay of the orders.
The applicant complained that the respondent did not support his relationship with the child and breached an order in September 2018 by withholding the child and threatening him. The applicant did not pursue any contravention application in that regard. He asserted that on 19 October 2019 “he reported the mother’s perjury to police and this is being investigated.”
The arguments raised by the applicant in his affidavits were largely replicated by him orally during the stay proceedings.
The Independent Children’s Lawyer sought an order that the application for a stay be dismissed. She advised that the hearing of the appeal was listed for 20 January 2020 and that no change should be made to the orders. The child is 7 years old and has an established relationship with her father. In her view a period of about 2 and a half months was unlikely to have a significant long term negative impact on the child. She indicated that in the Tender Bundle (Exhibit ICL 1) police records document that the father’s mother intends to return to China before the end of 2019.[3]
[3] Page 112 of Exhibit ICL-1 (Tender Bundle).
The respondent sought an order that the application for a stay be dismissed.
Discussion
There is no issue regarding the bona fides of the applicant. No doubt he loves his daughter and wants to spend time and communicate with her on a regular basis. He also wants his daughter to move to Perth and the mother to resume her relationship with him.
Regarding the fact that a stay may be granted on terms that are fair to all parties there are significant practical difficulties in the child spending time with the applicant given the distance between the parties where the applicant resides in Perth and the respondent in Brisbane. Changeover has been distressing notwithstanding that it occurs in a public place with the respondent being subjected to harassing conduct by the applicant frequently requiring strangers to intervene.
Supervised time may be an option however when supervised, the applicant has in the past displayed concerning behaviour such that the supervisor raised significant concerns about the child. Given that the appeal is listed for 20 January 2020 it is unlikely supervised time can be arranged before then.
Both parties communication is conflictual and the respondent alleges that the applicant is threatening and harassing. The respondent is required to organise and facilitate communication and I am satisfied that she is in fear of the applicant. I have taken that into account and the impact of her fear on the child in suspending the order for communication.
I have weighed the risks to the child with the applicant’s right to spend time with protecting the child from being exposed to conflict and family violence and determined that the orders I made suspending time and communication are in the child’s best interests.
This is not a case where the appeal may be rendered nugatory if a stay is not granted.
I take into account that the orders were suspended on 2 September 2019 and consider that it was appropriate to relieve the child from being exposed to conflict and family violence in the short term. The Notice of Appeal was lodged on 24 September 2019. No action has been taken regarding the Court order that the applicant provide a report from a psychologist following assessment addressing the applicant’s conduct in the context of the concerns raised by the family consultant and interim findings by the Court. No further evidence has been adduced regarding the incident where police seized child exploitation material from the applicant’s residential address. This evidence would be of assistance to the Court. It is also desirable to limit the frequency of changes for the child. I have taken all matters into account in making my decision.
Strength of the appeal
The grounds of appeal do not specifically challenge the findings made by me with respect to family violence nor address the reasons given in the judgment for the orders made on 20 September 2019 (as amended). Nor are the challenges regarding errors of law or mistake of fact clearly articulated. With respect to the latter neither asserted mistake of fact was material to my determination.
As is apparent from the evidence adduced by the applicant concerns were raised regarding a denial of procedural fairness. It is accepted that the applicant being unrepresented may have had difficulty addressing the issues raised during the interim proceedings however it is his right to represent himself. The Court made available a Mandarin interpreter for both parties.
The application for a stay rested primarily on the introduction of evidence not before the Court at the interim hearing. None of that evidence adequately addressed the issue of allegations of family violence.
Conclusion
The onus is on the applicant in these proceedings to establish a proper basis for granting a stay of the orders. The respondent and Independent Children’s Lawyer both oppose a stay being granted and seek an order that the application for a stay of the orders be dismissed.
With respect to the strength of the applicant’s Notice of Appeal I am not satisfied that he has established an arguable case nor established that the Court’s discretion miscarried. Having regard to the factors considered above including that the appeal is listed for 20 January 2020, it is desirable to minimize changes for the child, the practical difficulties regarding alternate arrangements, the applicant’s past conduct towards the respondent in the presence of the child and the impact of the parties negative conflictual relationship on the child emotionally and psychologically I am satisfied that an order refusing to stay the orders made by me on 20 September 2019 (as amended) is in the child’s best interests. I make orders accordingly.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 12 November 2019
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